- Injunctive relief immediately appealable.
- Mandamus immediately appealable.
- Cohen collateral doctrine test not a statutory construction.
- 3-part test:
- 1. Issue must be fully resolved.
- 2. Issue be completely divorced from merits.
- 3. Issue be one that is “effectively unreviewable” if we wait for a final judgment.
- Lauro Lines an example of applying the Cohen test
- They feel clause was supposed to give them freedom from hassling with litigation other than in Naples.
- Could be right to be free from suit (this is how we conceive of "official immunity" like in Gomez v. Toledo--who has to prove existence or not--freedom from suit to free up time to do job, not to protect assets)
- Justice Brennan says this could also be freedom from binding judgment other than from Naples court.
- If that's view of bargained-for forum selection clause, then it can always be voided later on and you can be free from judgment.
- What kind of protection is most analogous to this forum selection clause?
- Somewhat like arbitration clauses (freedom from litigation itself).
- Or maybe personal jurisdiction (goes to the where question).
- But personal jurisdiction is a Constitutional issue, thus different.
- Note that, absent Cohen, if you lose this argument, you cannot immediately appeal.
Applying the settled rule that an appellate court will affirm a lower court whenever possible.